Chapter 893

893.80 Annotation Three factors should be considered when determining whether to exempt a specific statute from the notice of claim requirements: 1) whether there is a specific statutory scheme for which the plaintiff seeks exemption; 2) whether enforcement of the notice of claim requirements would hinder a legislative preference for a prompt resolution of the type of claim under consideration; and 3) whether the purposes for which this section was enacted would be furthered by requiring that a notice of claim be filed. Antitrust actions brought under s. 133.18 are not exempt from the notice of claim requirements found in sub. (1) [now sub. (1d)]. E-Z Roll Off, LLC v. County of Oneida, 2011 WI 71, 335 Wis. 2d 720, 800 N.W.2d 421, 09-0775.

893.80 Annotation The first step in the ministerial duty analysis is to identify a source of law or policy that imposes the alleged duty. Merely arguing, in general terms, that a municipality that alters the normal course of traffic on a road must take measures to ensure the public can safely travel on the road and not pointing to any statute, regulation, or policy that imposes this duty, fails to do so. Even assuming the county had a duty to ensure reasonably safe travel during road construction, that duty would not be ministerial. How to safely control traffic in a construction zone is an inherently discretionary decision requiring the exercise of judgment. American Family Mutual Insurance Co. v. Outagamie County, 2012 WI App 60, 341 Wis. 2d 413, 816 N.W.2d 340, 11-1211.

893.80 Annotation It is evident that the plain meaning of “action” in sub. (3) is a judicial proceeding. While two other subsections within this section utilize the term “suit,” those subsections are unrelated; they operate independently and without reference to sub. (3). Thus, it does no mischief to interpret suit and action to have the same meaning. Sub. (3) provides for one damages cap, per person, per action. Anderson v. Hebert, 2013 WI App 54, 347 Wis. 2d 321, 830 N.W.2d 704, 12-1313.

893.80 Annotation Volunteer firefighters are actuated by a purpose to serve the fire department from the moment they choose to respond to an emergency call. Because of that, they are operating within the scope of their employment for the purposes of sub. (4) immunity. Brown v. Acuity, 2013 WI 60, 348 Wis. 2d 603, 833 N.W.2d 96, 11-0583.

893.80 Annotation Under s. 346.03 (3), the driver of an emergency vehicle may proceed through a red stop signal only if the driver’s vehicle gives a visual and an audible signal. A driver who did not give an audible signal has no discretion to proceed through a red stop signal. The statute sets forth “absolute, certain and imperative” requirements concerning the “performance of a specific task.” Thus s. 346.03 (3) imposes upon a driver a ministerial duty to stop at a red stop signal, and a driver who does not falls within the ministerial duty exception to public officer immunity. Brown v. Acuity, 2013 WI 60, 348 Wis. 2d 603, 833 N.W.2d 96, 11-0583.

893.80 Annotation The monetary damage cap in sub. (3) does not violate equal protection. The plain meaning of sub. (3) is to limit the dollar amount of recovery to be paid for damages, injuries, or death to $50,000 per claimant, but the plain meaning of that provision has no bearing on the availability of equitable relief such as abatement. Bostco LLC v. Milwaukee Metropolitan Sewerage District, 2013 WI 78, 350 Wis. 2d 554, 835 N.W.2d 160, 07-0221.

893.80 Annotation A municipal entity may be subjected to claims for equitable relief to abate a negligently maintained nuisance that is a cause of significant harm and of which the municipal entity has notice. Under Willow Creek, 2000 WI 56, and Johnson, 207 Wis. 2d 343 (1996), equitable relief will be barred when a municipal entity is entitled to immunity. When a plaintiff seeks equitable or injunctive relief against a municipal entity, a court must first answer the threshold question of whether immunity applies. If a court concludes that the actions the plaintiff is seeking to stop through a suit in equity are legislative, quasi-legislative, judicial, or quasi-judicial, then the suit must be dismissed because the governmental entity is protected by immunity. Bostco LLC v. Milwaukee Metropolitan Sewerage District, 2013 WI 78, 350 Wis. 2d 554, 835 N.W.2d 160, 07-0221.

893.80 Annotation When a governmental contractor seeks immunity under sub. (4), the contractor must show both that the contractor was an agent as that term is used in sub. (4) and that the allegedly injurious conduct was caused by the implementation of a decision for which immunity is available for governmental entities under sub. (4). A governmental contractor seeking to assert the defense of immunity should clearly allege in the pleadings why the injury-causing conduct comes within a legislative, quasi-legislative, judicial, or quasi-judicial function as set out in sub. (4). Showers Appraisals, LLC v. Musson Bros., Inc., 2013 WI 79, 350 Wis. 2d 509, 835 N.W.2d 226, 11-1158. See also Melchert v. Pro Electric Contractors, 2017 WI 30, 374 Wis. 2d 439, 892 N.W.2d 710, 13-2882.

893.80 Annotation While s. 346.03 provides statutory privileges of authorized emergency vehicles exempting their operators from certain rules of the road, it also explicitly states that an operator of an emergency vehicle is not relieved of the “duty to drive or ride with due regard under the circumstances for the safety of all persons.” The duty of “due regard under the circumstances” is a ministerial duty for purposes of determining immunity under this section. Legue v. City of Racine, 2014 WI 92, 357 Wis. 2d 250, 849 N.W.2d 837, 12-2499.

893.80 Annotation Nothing in Wisconsin law bars class action against a governmental body that is a mass action of named claimants bringing similar claims, provided that each claimant has complied with this section. Townsend v. Neenah Joint School District, 2014 WI App 117, 358 Wis. 2d 618, 856 N.W.2d 644, 13-2839.

893.80 Annotation To evaluate whether named claimants gave sufficient notice under this section, the issue is whether the notice they filed substantially complied with all the requirements of this section. To substantially comply, a notice must satisfy two related but distinct notice requirements. Sub. (1d) (a) imposes a “notice of injury” requirement of “written notice of the circumstances of the claim signed by the party, agent or attorney” and a “notice of claim” requirement under sub. (1d) (b) that notice of the claimant’s identity and address, along with an itemized statement of relief sought, was presented to the proper person at the governmental body and was denied. Actual notice and lack of prejudice are an alternative to the written notice for sub. (1d) (a) but not for sub. (1d) (b). Townsend v. Neenah Joint School District, 2014 WI App 117, 358 Wis. 2d 618, 856 N.W.2d 644, 13-2839.

893.80 Annotation Whether claims were presented by the claimants’ authority is a function of the requirement under sub. (1d) (a) that a claim be “signed by the party, agent or attorney” or, in the alternative, that the governmental body had actual notice. In this case, the notice was signed by an attorney “for Claimants and Class,” and the “class” was defined as the persons whose names, addresses, and claims were itemized on an attached list. If the notice of claim were a pleading in court, the attorney’s signature would have sufficed to indicate the attorney’s status as representative for the identified clients and “need not be verified or accompanied by affidavit.” Townsend v. Neenah Joint School District, 2014 WI App 117, 358 Wis. 2d 618, 856 N.W.2d 644, 13-2839.

893.80 Annotation When a gas company provided the only training for natural gas leak emergencies for the entire city fire department, the responsibility for training first responders on how to respond to natural gas emergencies was effectively delegated to the gas company. The gas company’s first responder handbook that accompanied the training was the only written protocol available describing how city employees were to handle natural gas emergencies and was effectively adopted by the city when it delegated its specialized training authority to the gas company. The fire department had a ministerial duty based on the city’s delegations of both the emergency response training and the performance requirements in the handbook. Oden v. City of Milwaukee, 2015 WI App 29, 361 Wis. 2d 708, 863 N.W.2d 619, 14-0130.

893.80 Annotation The “known danger” exception, a subset of the ministerial duty exception, to governmental immunity did not apply in this case. The police department performed its ministerial duty by promptly acting in response to sexual assault allegations regarding a child reported by the school principal and performing a criminal investigation. The child’s objection in this lawsuit was to the scope of the investigation, inferring that the police should have somehow deduced or learned through additional investigation that the child’s uncle was assaulting the child. The “how” and “scope” of the investigation performed by the police department were discretionary acts rather than a ministerial duty and thus the police department was entitled to immunity. D.B. v. County of Green Lake, 2016 WI App 33, 368 Wis. 2d 282, 879 N.W.2d 131, 15-1301.

893.80 Annotation The scope and breadth of the county’s investigation of abuse reported under s. 48.981 (2) falls within the county’s discretion rather than being a ministerial act. Therefore, immunity under sub. (4) applied to a county, when the county’s investigation followed the requirements of s. 48.981 (3) (a) 3. by referring the matter to the police for investigation within 12 hours of receiving the report. D.B. v. County of Green Lake, 2016 WI App 33, 368 Wis. 2d 282, 879 N.W.2d 131, 15-1301.

893.80 Annotation The known danger exception to governmental immunity under sub. (4) applies when an obviously hazardous situation known to the public officer or employee is of such force that a ministerial duty to correct the situation is created. Simply allowing for the exercise of discretion does not suffice to bring an action under the blanket of immunity provided by sub. (4) when the facts or allegations reveal a duty so clear and absolute that it falls within the concept of a ministerial duty. In this case, the fact that there may have been several possible ways in which the defendant could have fulfilled its ministerial duty did not affect the resolution of the case. It was sufficient for the court to conclude that a ministerial duty was created by the obviously hazardous circumstances presented in the case. Engelhardt v. City of New Berlin, 2019 WI 2, 385 Wis. 2d 86, 921 N.W.2d 714, 16-0801.

893.80 Annotation In this case, the condominium association alleged causes of action for public and private nuisance against the village for hosting public performances at a pavilion constructed in a public park in the village. Under the common law of nuisance, every continuation of a nuisance is a new nuisance. Therefore, for purposes of the notice of claim statute, each individual concert that was alleged to be a nuisance constituted a new event giving rise to a new 120-day notice of injury period under sub. (1d) (a). Yacht Club at Sister Bay Condominium Ass’n v. Village of Sister Bay, 2019 WI 4, 385 Wis. 2d 158, 922 N.W.2d 95, 17-0140.

893.80 Annotation Noncompliance with this section is an affirmative defense and not a jurisdictional prerequisite to filing suit. Maple Grove Country Club Inc. v. Maple Grove Estates Sanitary District, 2019 WI 43, 386 Wis. 2d 425, 926 N.W.2d 184, 16-2296.

893.80 Annotation A village’s oral policy to pump water out of a lift station when water reaches a certain level did not create a ministerial duty to act, and rules of the Department of Natural Resources emphasized the discretionary nature of the decision. Because the task was discretionary, the village was immune from suit for negligence under sub. (4). Pinter v. Village of Stetsonville, 2019 WI 74, 387 Wis. 2d 475, 929 N.W.2d 547, 17-1593.

893.80 Annotation In this case, even if a growing snow and ice ramp created by a city’s alleged negligent plowing practices was known to the city, the danger was not sufficiently compelling to give rise to a ministerial duty. A commonplace icy condition on the street where the plaintiff was injured did not create a danger so severe and so immediate that a response was demanded. To conclude otherwise would ignore the realities that Wisconsin pedestrians are accustomed to icy winter conditions and that a Wisconsin municipality will never be able to address every potentially unsafe snow and ice accumulation on its roadways and must instead exercise its discretion in determining how and when to respond to them. Knoke v. City of Monroe, 2021 WI App 6, 395 Wis. 2d 551, 953 N.W.2d 889, 19-2003.

893.80 Annotation The first sentence of s. 893.83 grants municipalities a period of absolute immunity for claims based on snow and ice accumulations that have existed less than three weeks. The second sentence clarifies that immunity is not absolute if the snow or ice accumulation has existed for three weeks or more—under such circumstances, a claim is subject to this section, like any other tort claim against a municipality. Knoke v. City of Monroe, 2021 WI App 6, 395 Wis. 2d 551, 953 N.W.2d 889, 19-2003.

893.80 Annotation The first sentence of sub. (1d) (a) outlines the requirements of formal notice of injury. There are four elements: 1) proper timing (within the first 120 days); 2) proper service under s. 801.11 (governing service of process in civil actions); 3) proper signatory; and 4) a description of the circumstances of the claim. That notice simply alerts the defendant that an incident occurred that might thereafter ripen into a claim. Formal notice of the claim itself comes later. Clark v. League of Wisconsin Municipalities Mutual Insurance Co., 2021 WI App 21, 397 Wis. 2d 220, 959 N.W.2d 648, 19-0954.

893.80 Annotation To mitigate the potential harshness that might ensue from the strict application of the formal notice of injury requirement, the statute contains a savings clause. The second sentence of sub. (1d) (a) allows for substantial compliance, excusing a plaintiff’s failure to provide formal notice when: 1) the defendant had actual notice of the claim; and 2) the plaintiff shows to the satisfaction of the court that the delay or failure to give the requisite formal notice has not been prejudicial. In at least one respect, the actual notice requirement may be more difficult to meet than formal notice: actual notice must be “of the claim,” rather than of the mere “circumstances” that may later give rise to a claim. On the other hand, actual notice is not limited to a particular timeframe and may occur outside the 120 days following the injury-causing event. In this case, the plaintiff’s submission of the notice of claim form served double-duty as both actual notice under the savings clause and notice of claim under sub. (1d) (b). Clark v. League of Wisconsin Municipalities Mutual Insurance Co., 2021 WI App 21, 397 Wis. 2d 220, 959 N.W.2d 648, 19-0954.

893.80 Annotation Prejudice in the context of sub. (1d) (a) has been defined as the inability of a party to adequately defend a claim because the party lacked sufficient opportunity to conduct a prompt investigation. The date on which a defendant had “actual notice of the claim” may bear on prejudice, but it is certainly not dispositive. The key inquiry is what, if anything, would the defendant have done differently had the plaintiff timely served a statutorily compliant written notice describing the circumstances of the claim? It is conceivable that the answer to this “what if” question could be affected by when the defendant first learned of the actual claim. An example might be when the defendant’s awareness of an injury was not enough to prompt an investigation sufficient to protect the defendant’s interests—when, in other words, only the defendant’s knowledge of a potential lawsuit could have prompted such an investigation. But whether that is true in any given case should be assessed as part of the overall factual inquiry into prejudice. Clark v. League of Wisconsin Municipalities Mutual Insurance Co., 2021 WI App 21, 397 Wis. 2d 220, 959 N.W.2d 648, 19-0954.

893.80 Annotation The six-month time period under sub. (1g) is a statute of limitations. A plaintiff asserting that a defendant is equitably estopped from asserting a statute of limitations defense must show the defendant’s action or nonaction that induced the plaintiff’s reasonable reliance thereon to the plaintiff’s detriment. In addition, inequitable or fraudulent conduct must be established. Kornreich v. Town of Cedarburg, 2023 WI App 46, 409 Wis. 2d 118, 996 N.W.2d 72, 22-0198.

893.80 Annotation Discussing liability of vocational, technical, and adult education [now technical college] districts and of their officers and employees. 77 Atty. Gen. 145.

893.80 Annotation A town that responds to a Level B hazardous waste release in its own capacity, in the absence of a county wide agreement, does not receive immunity from civil liability under s. 895.483 (2), but other statutory and common law immunities apply. OAG 1-99.

893.80 Annotation Monroe, 365 U.S. 167 (1961), is overruled insofar as it holds that local governments are wholly immune from suit under 42 USC 1983. Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).

893.80 Annotation A defendant public official has the burden to plead “good faith” as an affirmative defense in a 42 USC 1983 case. Gomez v. Toledo, 446 U.S. 635, 100 S. Ct. 1920, 64 L. Ed. 2d 572 (1980).

893.80 Annotation A municipality is immune from punitive damages under 42 USC 1983. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S. Ct. 2748, 69 L. Ed. 2d 616 (1981).

893.80 Annotation A city ordinance regulating cable television was not exempt from antitrust scrutiny under the Parker, 317 U.S. 341 (1943), doctrine. Community Communications Co. v. City of Boulder, 455 U.S. 40, 102 S. Ct. 835, 70 L. Ed. 2d 810 (1982).

893.80 Annotation This section is preempted in 42 USC 1983 actions and may not be applied as it conflicts with the purpose and effects of federal civil rights actions. Felder v. Casey, 487 U.S. 131, 108 S. Ct. 2302, 101 L. Ed. 2d 123 (1988).

893.80 Annotation A claim of excessive force in the course of making a seizure of the person is properly analyzed under the 4th amendment’s objective reasonableness standard. A police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the 4th amendment, even when it places the fleeing motorist at risk of serious injury or death. Scott v. Harris, 550 U.S. 372, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007).

893.80 Annotation Whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time the action was taken. When an alleged 4th amendment violation involves a search or seizure pursuant to a warrant, the fact that a neutral magistrate has issued a warrant is the clearest indication that the officers acted in an objectively reasonable manner. There is a narrow exception allowing suit when it is obvious that no reasonably competent officer would have concluded that a warrant should issue. Messerschmidt v. Millender, 565 U.S. 535, 132 S. Ct. 1235, 182 L. Ed. 2d 47 (2012).

893.80 Annotation Sub. (4) bars direct suits against municipalities for the torts of their employees. It does not preclude suing the officer directly and using s. 895.46 to indirectly recover from the municipality. Graham v. Sauk Prairie Police Commission, 915 F.2d 1085 (1990).

893.80 Annotation Once a deputy assumed a duty to protect a person subsequently murdered in a room adjacent to where the deputy was present, the deputy’s obligation was no longer discretionary and the deputy was no longer entitled to immunity under sub. (4) for decisions made at the murder site. Losinski v. County of Trempealeau, 946 F.2d 544 (1991).

893.80 Annotation Immunity of elected officials under sub. (4) is not defeated by the possibility that the officials’ acts were malicious. Farr v. Gruber, 950 F.2d 399 (1991).

893.80 Annotation The state may not be sued by a citizen under the wrongful death statute. Pinon v. Wisconsin, 368 F. Supp. 608 (1973).

893.80 Annotation Discussing civil rights actions against municipalities. Starstead v. City of Superior, 533 F. Supp. 1365 (1982).

893.80 Annotation A county was not vicariously liable for its sheriff’s alleged use of excessive force when the complaint alleged an intentional tort. Voie v. Flood, 589 F. Supp. 746 (1984).

893.80 Annotation Decisions by law enforcement officers concerning whether and how to arrest someone are discretionary for purposes of sub. (4). Wilson v. City of Milwaukee, 138 F. Supp. 2d 1126 (2001).

893.80 Annotation The duty to report abuse of children to authorities under s. 48.981 is ministerial and not discretionary. Baumgardt v. Wausau School District Board of Education, 475 F. Supp. 2d 800 (2007).

893.80 Annotation Claims under the wage claim statute, s. 109.03, are not exempt from the requirements set forth in this section. Gilbertson v. City of Sheboygan, 165 F. Supp. 3d 742 (2016).

893.80 Annotation The exception to discretionary immunity under sub. (4) for malicious, willful, and intentional conduct can apply to negligence claims. Price v. Mueller-Owens, 516 F. Supp. 3d 816 (2021).

893.80 Annotation Knowledge of the relevant events isn’t enough to qualify as actual notice under sub. (1d) (a). Rather, the defendants must have notice of the claim. Among other things, that means that the defendants must have notice of the specific relief that the plaintiff is requesting. Stabenow v. City of Eau Claire, 546 F. Supp. 3d 787 (2021).

893.80 Annotation The Discretionary Function Exception to Government Tort Liability. Wyant. 61 MLR 163 (1977).

893.80 Annotation Revising Wisconsin’s Government Immunity Doctrine. Annoye. 88 MLR 971 (2005).

893.80 Annotation Municipal Liability: The Failure to Provide Adequate Police Protection—The Special Duty Doctrine Should Be Discarded. Krause. 1984 WLR 499.

893.80 Annotation Wisconsin Recovery Limit for Victims of Municipal Torts: A Conflict of Public Interests. Ulrich. 1986 WLR 155.

893.80 Annotation Reining in Municipalities: How to Tame the Municipal Immunity Monster in Wisconsin. Dudding. 2004 WLR 1741.

893.80 Annotation Pushing the Reset Button on Wisconsin’s Governmental Immunity Doctrine. Bullard. 2014 WLR 801.

893.80 Annotation Several Police Supervisor Immunities From State Court Suit May Be Doomed By the Wisconsin Supreme Court. Fine. WBB Oct. 1977.

893.80 Annotation Government Immunity for Safe Place Statute Violations. Cabush. Wis. Law. Oct. 1999.

893.80 Annotation Fighting City Hall: Municipal Immunity in Wisconsin. Pollack. Wis. Law. Dec. 2000.

893.80 Annotation Returning to First Principles? Governmental Immunity in Wisconsin. Johnson-Karp. Wis. Law. Apr. 2014.

893.82 893.82 Claims against state employees; notice of claim; limitation of damages.

893.82(1) (1) The purposes of this section are to:

893.82(1)(a) (a) Provide the attorney general with adequate time to investigate claims which might result in judgments to be paid by the state.

893.82(1)(b) (b) Provide the attorney general with an opportunity to effect a compromise without a civil action or civil proceeding.

893.82(1)(c) (c) Place a limit on the amounts recoverable in civil actions or civil proceedings against any state officer, employee or agent.

893.82(2) (2) In this section:

893.82(2)(a) (a) “Civil action or civil proceeding” includes a civil action or civil proceeding commenced or continued by counterclaim, cross claim or 3rd-party complaint.

893.82(2)(b) (b) “Claimant” means the person or entity sustaining the damage or injury or his or her agent, attorney or personal representative.

893.82(2)(c) (c) “Damage” or “injury” means any damage or injury of any nature which is caused or allegedly caused by the event. “Damage” or “injury” includes, but is not limited to, any physical or mental damage or injury or financial damage or injury resulting from claims for contribution or indemnification.

893.82(2)(d) (d) “State officer, employee or agent” includes any of the following persons:

893.82(2)(d)1. 1. An officer, employee or agent of any nonprofit corporation operating a museum under a lease agreement with the state historical society.

893.82(2)(d)1m. 1m. A volunteer health care provider who provides services under s. 146.89, except a volunteer health care provider described in s. 146.89 (5) (a), for the provision of those services.

893.82(2)(d)1n. 1n. A practitioner who provides services under s. 257.03 and a health care facility on whose behalf services are provided under s. 257.04, for the provision of those services.

893.82(2)(d)1r. 1r. A physician under s. 251.07 or 252.04 (9) (b).

893.82(2)(d)2. 2. A member of a local emergency planning committee appointed by a county board under s. 59.54 (8) (a).

893.82(2)(d)3. 3. A member of the board of governors created under s. 619.04 (3), a member of a committee or subcommittee of that board of governors, a member of the injured patients and families compensation fund peer review council created under s. 655.275 (2), and a person consulting with that council under s. 655.275 (5) (b).

893.82(2m) (2m) No claimant may bring an action against a state officer, employee or agent unless the claimant complies strictly with the requirements of this section.

893.82(3) (3) Except as provided in sub. (5m), no civil action or civil proceeding may be brought against any state officer, employee or agent for or on account of any act growing out of or committed in the course of the discharge of the officer’s, employee’s or agent’s duties, and no civil action or civil proceeding may be brought against any nonprofit corporation operating a museum under a lease agreement with the state historical society, unless within 120 days of the event causing the injury, damage or death giving rise to the civil action or civil proceeding, the claimant in the action or proceeding serves upon the attorney general written notice of a claim stating the time, date, location and the circumstances of the event giving rise to the claim for the injury, damage or death and the names of persons involved, including the name of the state officer, employee or agent involved. Except as provided under sub. (3m), a specific denial by the attorney general is not a condition precedent to bringing the civil action or civil proceeding.

893.82(3m) (3m) If the claimant is a prisoner, as defined in s. 801.02 (7) (a) 2., the prisoner may not commence the civil action or proceeding until the attorney general denies the claim or until 120 days after the written notice under sub. (3) is served upon the attorney general, whichever is earlier. This subsection does not apply to a prisoner who commences an action seeking injunctive relief if the court finds that there is a substantial risk to the prisoner’s health or safety.

893.82(4) (4) 

893.82(4)(a) (a) Except as provided in par. (b), if the civil action or proceeding under sub. (3) is based on contribution or indemnification, the event under sub. (3) is the underlying cause of action, not the cause of action for contribution or indemnification, and, except as provided in sub. (5m), the 120-day limitation applies to that event.

893.82(4)(b) (b)

893.82(4)(b)1. 1. If the claimant under par. (a) establishes that he or she had no actual or constructive knowledge of the underlying cause of action at the time of the event under sub. (3), except as provided in sub. (5m), the 120-day limitation under sub. (3) applies to the earlier of the following:

893.82(4)(b)1.a. a. The date the cause of action for contribution or indemnification accrues.

893.82(4)(b)1.b. b. The date the claimant acquired actual or constructive knowledge of the underlying cause of action.

893.82(4)(b)2. 2. The claimant has the burden of proving he or she had no actual knowledge of the underlying cause of action under this paragraph.

893.82(5) (5) The notice under sub. (3) shall be sworn to by the claimant and shall be served upon the attorney general at his or her office in the capitol or at the department of justice by personal service or by certified mail. If served by certified mail, notice shall be considered to be given upon mailing for the purpose of computing the time of giving notice.

893.82(5m) (5m) With regard to a claim to recover damages for medical malpractice, the provisions of subs. (3), (3m), and (4) do not apply. The time periods for commencing an action under this section for damages for medical malpractice are the time periods under ss. 893.55 (1m), (2), and (3) and 893.56.

893.82(6) (6) The amount recoverable by any person or entity for any damages, injuries or death in any civil action or civil proceeding against a state officer, employee or agent, or against a nonprofit corporation operating a museum under a lease agreement with the state historical society, including any such action or proceeding based on contribution or indemnification, shall not exceed $250,000. No punitive damages may be allowed or recoverable in any such action.

893.82(7) (7) With respect to a state officer, employee or agent described in sub. (2) (d) 3., this section applies to an event causing the injury, damage or death giving rise to an action against the state officer, employee or agent, which occurs before, on or after April 25, 1990.

893.82(8) (8) This section does not apply to actions commenced under s. 19.37 or 19.97.

893.82(9) (9) For purposes of this section, any employee of the state of Minnesota performing services for this state pursuant to a valid agreement between this state and the state of Minnesota providing for interchange of employees or services is considered to have the same status an as employee of this state performing the same services for this state, and any employee of this state who performs services for the state of Minnesota pursuant to such an agreement is considered to have the same status as when performing the same services for this state in any action brought under the laws of this state.

893.82 History History: 1973 c. 333; 1977 c. 29; 1979 c. 221; 1979 c. 323 s. 30; 1979 c. 355; Stats. 1979 s. 893.82; 1983 a. 27; 1985 a. 66, 340; 1987 a. 342; 1987 a. 403 s. 256; 1989 a. 187, 206, 359; 1991 a. 39, 269; 1993 a. 27, 28; 1995 a. 158, 201; 1997 a. 133; 2003 a. 111; 2005 a. 96; 2007 a. 79, 130; 2009 a. 42, 278; 2011 a. 32; 2013 a. 241; 2019 a. 29.

893.82 Note Judicial Council Committee’s Note, 1979: This section is previous s. 895.45 renumbered for more logical placement in restructured ch. 893. The previous 90-day time period in which to file written notice of a claim against an employee of the state of Wisconsin has been increased to 120 days to make the time period consistent with the period for filing notice of claims with other governmental bodies allowed in s. 893.80. (See note following s. 893.80). [Bill 326-A]